Ending the death penalty in the United States won’t be easy.
After death penalty abolitionists slowly pushed toward its elimination for
years, supporters of state killing have mounted a fierce effort in the courts
and at the ballot box and regained some lost ground.
I have spent more than two
death penalty and have lent my voice to those who seek its end. Looking back
on 2016, I’d suggest that understanding the impact of ballot questions on the
history of the death penalty may be the key to determining its future.
In the last decade, seven states – Connecticut, Delaware, Illinois, Maryland,
New Jersey, New Mexico and New York – have abolished the death penalty by
legislative or judicial action. Governors have imposed moratoria on
executions in Colorado, Oregon, Pennsylvania and Washington.
But even with support for death penalties and executions waning, referenda in
2016 leaned in the opposite direction.
Consider California, a state that currently has 749
inmates on death row, but where no one has been executed since 2006.
Proposition 66, passed by voters last November, seeks to change that. It
designates special courts to hear challenges to death penalty convictions,
limits successive appeals and expands the pool of lawyers who could handle those
appeals – all in an effort to speed up executions. The state Supreme Court is
currently considering the constitutionality of the law, which opponents claim strips
the court system of authority.
At the same time they approved Proposition 66,
California voters also defeated Proposition
62, a measure that would have ended the death penalty for murder and
replaced it with life in prison without parole.
In a few of those
elections, voters have been asked only to approve technical changes in their
state’s death penalty law. In others, like last year in Oklahoma, they had to
decide whether to change their state constitutions to protect or reinstate the
Sometimes death penalty abolitionists have led the way in pushing for a
referendum. More often, especially since 1968, voters have been asked to respond
to a legislative, judicial or executive action which threatened to end, or
ended, the death penalty. In those circumstances, the issue generally has been
put on the ballot by pro-death
Yet whatever the form of the question, or the reasons for putting the death
penalty to a vote, abolitionists have consistently taken an electoral beating.
They lost 31
of the 34 times when voters were offered the chance to express their views.
Let’s consider the three times opponents of capital punishment won. In Oregon,
abolitionists prevailed in 1914. But, just six years later, another referendum
brought the death penalty back – only to have it voted down again in 1964.
Arizona voters rejected the death penalty in 1916, but brought it back in 1918.
Abolitionists have consistently lost in even supposedly progressive states like
Massachusetts, which voted in favor of the death penalty in 1968 and 1982.
Democracy and the prospects of abolition
While we know that referenda are by
no means perfect expressions of the will of the people, they tell us
something important about the likely road to ending the death penalty. They
suggest that in the United States, as has been the case in other democratic
nations, its end will not come about as result of pressure
from the populace.
Scholars like Yale law professor, James Whitman, say the effort to eliminate the
death penalty pits elites against the
will of the people. The history of death penalty referenda would seem to
support that conclusion.
That is what our history teaches. The United States almost certainly would not
have ended slavery or given women the right to vote if those issues had been
decided at the ballot box.
And neither will this country abolish the death penalty in that manner.
Following the European example, it will do so only when politicians and judges
conclude that democratic nations cannot put their own citizens to death and
true to their own principles.
Recently, former New Mexico Governor Bill Richardson, who once carried out
executions but now opposes capital punishment, wrote
of his worry about what he called “America’s isolation on this critical
human rights issue.” Richardson quoted a decision of the Connecticut State
Supreme Court that said: “It always has been easier for us to execute those we
see as inferior or less intrinsically worthy.” I believe Richardson got it right
when he concluded, “To effectively represent the interests of citizens, and
protect our nation’s role as a global leader, a new generation of policymakers
and politicians must put the death penalty to rest once and for all.”
Richardson’s view is not antidemocratic. It is that of a citizen who knows full
well the damage the death penalty does to the values that make our democracy